Appeals court tosses order blocking Mississippi executions

JACKSON, Miss. (AP) — An appeals court Wednesday upheld Mississippi's method of lethal injection, rejecting arguments from death row inmates who opposed the state's plan to use drugs not specifically approved by state law.

The 5th Circuit U.S. Court of Appeals ruled that U.S. District Judge Henry T. Wingate ruled incorrectly in August when he issued a preliminary injunction blocking the state from executing prisoners.

The opinion by Circuit Judge Jennifer Walker Elrod rejected arguments by death row prisoners that Mississippi can't execute them because the state no longer will be using the particular class of drugs required by state law. She wrote that if inmates want to pursue such claims, they should do so in state court.

Mississippi law requires a three-drug process, with an "ultra-short-acting barbiturate" followed by a paralyzing agent and a drug that stops an inmate's heart. But Mississippi and other states had increasing difficulty obtaining such drugs after 2010, as manufacturers began refusing to sell it for executions.

Now, the state says it intends to use another sedative, midazolam, which doesn't render someone unconscious as quickly. The U.S. Supreme Court recently upheld as constitutional Oklahoma's use of midazolam.

"Mississippi's statutory requirements and the associated lethal injection protocol are not 'atypical ... in relation to the ordinary' in comparison with other states' execution protocols," Elrod wrote.

Prisoners claimed they faced risk of excruciating pain and torture during an execution because they might remain conscious after midazolam was administered, and that such pain violates the U.S. Constitution's Eighth Amendment prohibition against cruel and unusual punishment.

Elrod rejected those arguments and sent the case back to Wingate for further action.

Jim Craig, who represents two of the prisoners who sued, called the ruling "disappointing," but said he expects to ask Wingate for another preliminary injunction on other grounds. He said there is more evidence now than in August that use of new drugs will be problematic, and he said the Mississippi Department of Corrections "refuses to adopt procedures and safeguards that could prevent such torture."

"Given this proof, we are hopeful that Judge Wingate will reinstate the injunction on those additional grounds," Craig said in a statement.

Since the court overruled only a preliminary injunction, Wingate could also still decide the case in favor of the prisoners. A trial is set for August.

Mississippi Attorney General Jim Hood applauded the judge's decision.

"For years and years, anti-death penalty groups have clogged the courts with bogus legal claims that only delay justice for murder victims and their families," Hood said in a statement Wednesday. "If these anti-death penalty groups want to change the law, they should be lobbying the Legislature to change the law to stop use of the death penalty, not filing frivolous claims attempting to dupe judges into stopping executions at the last minute."

Hood's spokeswoman, Rachel Ring, wouldn't say whether the attorney general would ask the state Supreme Court to set execution dates for prisoners who have exhausted their appeals.

Mississippi lawmakers have been considering bills creating alternate methods of execution, including the gas chamber and the firing squad. Hood called on them to continue in case lethal injection is ruled illegal, as well as to pass laws to keep secret the names of people who provide execution drugs and take part in executions.

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